What is Diversion?
Pre-Trial Intervention / Pre-Trial Diversion is an alternative to prosecution. It is a program which is designed to make you think twice about future criminality by way of making you jump through a series of proverbial hoops, during a period of supervision, successful completion of which results in a dismissal of the underlying charge. All diversionary programs are owned and operated by the State Attorney’s Office, and they (and they alone) have absolute and unequivocal discretion as to whether to admit you, to keep you or to “graduate” you from their program.
Who is eligible for Diversion?
Not all but most first time offenders are eligible for some form of PTI/PTD. Florida has 20 different Judicial Circuits, each of these Judicial Circuits has its own State Attorney’s Office and each State Attorney’s Office has their own variety of diversionary programs. The availability of a diversionary program depends just as much on your location as it does on the offense with which you are charged (what is subject to diversion in say Miami may not be divertable in say Pensacola or in Ocala or in Punta Gorda). Your best bet is always to speak with an experienced criminal defense attorney in your particular jurisdiction to determine whether or not diversion is an option in your case.
Should I accept Diversion?
Assuming that a program exists and that you are eligible for enrollment then the question becomes whether or not diversion is right for you. Many diversionary programs require you to either enter a guilty plea or to sign a written acceptance of responsibility form as a condition precedent to admission into the program. Although successful completion will result in withdrawal of the previously entered plea or destruction of the affidavit followed by a dismissal (or a “nolle pros”), if you are bounced out of the program then you will likely have a further obstacle to defending yourself. Further, you may enjoy viable defenses to the charges, affirmative or otherwise, or there may be factual, legal, procedural or substantive mechanisms by which to attack and beat the charges without going through diversion in your case. So, again, you should speak with an experienced criminal defense attorney prior to making your decision.
What are some examples of Diversion?
In Miami-Dade County (for example) the State Attorney’s Office offers a wide variety of diversionary programs in both County (misdemeanor) and Circuit (felony) Courts. Most non-violent first time offenders are offered some form of diversion but not all (for example, if you have a “money” case and owe more than $5,000.00 in restitution then you are not eligible for diversion, even though someone similarly situated with less than $5,000.00 in restitution would be eligible). In cases involving violence victim approval is always a condition precedent, and many violent offenses are simply ineligible. Miami-Dade County has a PTI program for some domestic violence cases (involving 26 weeks of classes – among other things) as well as one for 1st time non-aggravated DUI cases (called “BOT” or “Back on Track”). However, if you cross NE 203rd Street and enter Broward County the picture is very different.
What happens if I “bounce-out” of diversion?
Again, the consequences of a bounce-out will vary from jurisdiction to jurisdiction. For example, before you are admitted into BOT in Miami-Dade County you are required to sign an “Acceptance of Responsibility” form. It is essentially a confession and is expressly admissible in evidence against you in a subsequent proceeding the event that you are bounced-out of the program, but the same State Attorney’s Office does not require such a form for entry into any other form of diversion. In the case of juvenile diversion (JASS) the MDCty SAO requires a guilty plea as a necessary precursor, such that if you bounce out then, as you have already pled guilty, you go straight to sentencing (“dispositional hearing”). Regardless, of your jurisdiction it is safe to say that if you bounce out of diversion you can expect to be prosecuted aggressively for your original charge(s).
What happens if I successfully complete Diversion?
Successful completion of most diversionary programs results in a dismissal (a “nolle pros”) of the original charge(s). Some forms of diversion, like Miami-Dade’s “BOT” program, result in a dismissal of the DUI charge and a withhold of adjudication to a reduced / amended charge of reckless driving. A dismissal / nolle pros means that the charge(s) was (were) dropped but that does not erase either the record / fact of your arrest or the case history of your prosecution. In the event of a dismissal / nolle pros, unless the charge is a disqualified offense, then you are free to follow the statutory process to petition the Court to expunge your record. Note that an expunction only effects public and not private records and that in today’s “internet age” even expunged records have a nasty tendency to pop up and mess with your world.
How do I expunge my record after successful completion of Diversion?
In Florida you can only expunge one eligible (non-disqualified) offense in your lifetime. If you look at the following website you will learn everything you ever wanted to know about the sealing / expunction process: http://www.fdle.state.fl.us/content/getdoc/c83d… The procedure is both quite detailed and somewhat painstaking but is also far from being rocket science. You can attempt to navigate it yourself (FDLE has tried to simplify it – again I refer you to the website above) but, assuming your eligibility, any criminal defense lawyer (anywhere in Florida – this can be done remotely and does not necessarily require a local attorney, although a local attorney may or may not be less expensive) will be able to accomplish the task with greater ease and likely in a shorter time period.
What if after expunging my case still appears in background checks?
I suspect that it doesn’t much matter where you were arrested, what you were arrested for, what the final disposition was or whether or not you expunged the record as this is 2013 and we are forehead deep into the internet age, where nothing is private, sacred or truly hidden from public scrutiny. Sadly, expunging only applies to certain (not even to all) government agencies and has no effect whatsoever on private (er, extortionist) enterprise, who compile and maintain arrest information and then demand that you pay them off to remove your information from their database and public access. Worse still, after you “buy back your information”, then you can count on there being another private company lurking, somewhere, sometime, somehow, just waiting for you to pay them off as well. It’s a seemingly never-ending vicious cycle.
What do I tell a potential employer, school, landlord or other person / entity?
Every case is different, as are the circumstances surrounding each individual. Unfortunately, for better or for worse you are probably best advised to take the wind out of the sails by admitting your past issues / indiscretions to your present (or potential) employer, school, landlord, etcetera, rather than waiting for them to find out on their own.
